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[2000] FCA 1722
Federal Court of Australia
2000-11-28
Tamberlin JJ
Original judgment source is linked above.
introduction 1 This is an appeal from a judgment of a Judge of this Court, given on 28 July 2000, dismissing the appellant's application for an order of review of what were asserted to be decisions of a delegate of the respondent and the Refugee Review Tribunal, made respectively on 18 January 2000 and 2 February 2000. The respondent's delegate treated the appellant's application for a protection visa as not being a valid application. The Tribunal, by a Deputy Registrar, informed the appellant that it did not have jurisdiction to review the delegate's decision.
factual and procedural background 2 The appellant, who claims to be a citizen of Algeria, arrived in Australia as a stowaway on board the vessel "Moreton Bay" on 20 February 1998. On 4 June 1998 he applied for a protection visa. On 31 July 1998 a delegate of the respondent refused that application. The appellant sought review of that decision by the Refugee Review Tribunal. On 10 September 1998 the Tribunal affirmed the delegate's decision. On 31 August 1999 the appellant filed an application in this Court for an order of review of the Tribunal's decision and "… other decision (sic) made under this Act, or the regulations, relating to visas." 3 On 29 October 1999 the appellant, who was then represented by counsel, was granted leave to discontinue his application. A notice of discontinuance was filed in Court on that date and an order was made discontinuing the application. 4 On 20 December 1999 the appellant purported to make a further application for a protection visa. 5 On 18 January 2000 a delegate of the respondent wrote to the appellant advising him that his application of 20 December 1999 was not a valid application due to the provisions of s 48A(1) of the Migration Act 1958 (Cth) ("the Act"). The text of that subsection is reproduced below. 6 On 24 January 2000 the appellant applied to the Tribunal for review of the decision made by the delegate on 18 January 2000. 7 On 2 February 2000 a Deputy Registrar of the Tribunal wrote to the appellant informing him that the Tribunal had no jurisdiction under the Act to consider his application of 24 January 2000, stating that an application to the Tribunal for review could only be made after the respondent had decided to refuse an application for a protection visa and that s 47 of the Act provided that a decision that an application for a visa is not valid and cannot be considered was not a decision to refuse to grant a visa. 8 On 14 February 2000 the appellant filed an application in this Court to "… review the decision of the Refugee Review Tribunal and decision of DIMA made relating to visas that they have no jurisdiction under the Migration Act 1958 ("the Act") to consider the applicant's application."
The decision at first instance 9 The learned primary judge accepted as being correct the respondent's concession that the decision of his delegate was a "judicially-reviewable decision" within s 475(1)(c) of the Act, as it was a decision "relating to a visa". Accordingly his Honour held that the Court had jurisdiction under Part 8 of the Act to review that decision, but by reason of s 485 of the Act the Court had no other jurisdiction in respect of the decision. 10 His Honour then considered the application of s 48A of the Act. Section 48A(1) provides: "48A(1) Subject to section 48B,* a non-citizen who, while in the migration zone, has made: (a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or (b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined); may not make a further application for a protection visa while in the migration zone." [*Section 48B provides that the Minister may, if he thinks that it is in the public interest to do so, determine that s 48A does not apply to the non-citizen.] 11 His Honour noted that the appellant: · was a non-citizen as defined in s 5 of the Act; · while in the migration zone, had made an application for a protection visa which had been refused; and · was in the migration zone, as defined in s 5 of the Act, when he made a further application for a protection visa. 12 Consequently, so his Honour held, s 48A(1), if applicable to the appellant, would prevent him from making that further application. 13 The primary judge then considered the appellant's contention that s 48A(1) could have no application to an application for a temporary protection visa. As we understand it, the appellant's argument was that his second application was for what was described, in the application, as "… the temporary protection visa sub-class 785". The appellant contended that his first application had been for a protection visa, that by amendments effected by the Migration Amendment Regulations 1999 (No. 12) SR No 243 effective from 20 October 1999, protection visas were constituted by two sub-classes being 785 (temporary protection) and 866 (protection). Accordingly, so the appellant had submitted to the primary judge, the reference to "a protection visa" in s 48A did not apply to a temporary protection visa. 14 His Honour rejected that contention and held that s 48A(1) applied to prevent the appellant's further application so that it was not a valid application. His Honour cited s 46(1)(d) of the Act which relevantly provides that an application for visa is valid only if it is not prevented by s 48A. The respondent's delegate had correctly decided that the application was not a valid application and there was no basis to review that decision. 15 His Honour found that the "decision" of the Deputy Registrar of the Tribunal was neither made under the Act, relating to visas within s 475(1)(c), nor was it made by the Tribunal. Consequently the Court did not have any jurisdiction in relation to that "decision".
the appeal and OUR reasoning 16 The appellant was unrepresented. His notice of appeal did not set out any grounds. Pursuant to a direction, made by French J on 13 September 2000, the appellant filed a document which purported to particularise his grounds of appeal. That document was concerned almost exclusively with the merits of his application for refugee status. 17 In our view, the primary judge correctly applied the law. 18 We agree, respectfully, with him that s 48A of the Act applies to the circumstances of the appellant. He is a non-citizen who while in the migration zone made an application for a protection visa. That is not in issue. His further application was, in our opinion, also for a protection visa. It is not to the point that the appellant's second application was for a subclass 785 temporary protection visa. 19 Section 36 of the Act provides as follows: "Protection Visa (1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 20 A temporary protection visa is quite clearly a subclass of the class of visas known as "protection visas". The amending regulations referred to above omitted Item 1126 of Schedule 1 of the regulations and instead inserted under the heading "Part 4 Protection visas", Item 1401. That item provides for a protection (Class XA) protection visa. Sub-item 1401(4) shows that there are two sub-classes of that protection visa namely: 785 (Temporary Protection) and 866 (Protection). 21 Under the omitted item 1126 there had only been one sub-class, namely 866 (Protection). The amending regulations, as might be expected, inserted interpretation and criteria provisions into Schedule 2 in respect of sub-class 785 (Temporary Protection) visas and made consequential and other amendments to the criteria to be satisfied in respect of the sub-class of visa known as 866 (Protection). 22 The sub-class 785 (Temporary Protection) visa, introduced in 1999, permits its holder to remain in, but not re-enter, Australia until the earlier of the expiry of 36 months from the date of its grant and the day on which an application by the holder for a permanent visa is finally determined. A sub-class 866 (Protection) is a permanent visa permitting the holder to travel to and enter Australia for a period of 5 years from the date of grant - see sub-item 866.511. The criteria to be satisfied at the time of decision in respect of both a sub-class 785 and a sub-class 866 visa each include a requirement that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Both in the form in which provision is made for the two sub-classes of visa and in their substance they are each, in our opinion, quite clearly protection visas within the meaning of s 48A of the Act. 23 Accordingly, s 48A prevented the applicant from making the further application which he made on 20 December 1999. The consequence of that was that s 46(1)(d) applied to prevent that application from being a valid application. In turn, s 47(3) precluded the Minister from considering the application. Section 47(4) provides that a decision by the respondent that an application is not valid and cannot be considered is not a decision to refuse to grant the visa. 24 So far as the delegate's decision was concerned, in our opinion his Honour did not err in concluding that the delegate's decision was correct and that there was no basis to review it, if it were taken to be a judicially-reviewable decision. 25 The only potentially relevant basis upon which the Tribunal had jurisdiction to review the delegate's decision was if it had been a decision to refuse to grant a protection visa. As there was no such decision in respect of the applicant, the Tribunal lacked jurisdiction under the Act. 26 His Honour accepted that the determination by the Deputy Registrar of the Tribunal was not a "judicially-reviewable decision". His Honour then found that the Court had no jurisdiction to review that determination under the Act. No argument was addressed to his Honour that any other jurisdiction to review was conferred on the Court.
Conclusion 27 For the above reasons we would dismiss the appeal with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Court.
Counsel for the Respondent: R L Hooker
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 27 November 2000
Date of Judgment: 28 November 2000
Hammadi
Minister for Immigration & Multicultural Affairs